Constantine tried not to roll his eyes. “So what will you do?”
“I don't know, but I'll know it when I see it, kinda like pornography,” he added, hoping to lighten the moment with a joke.
“Better not be too much like pornography,” Constantine said, “at least not while you're staying here.”
“It was a joke, Michael,” Vickie says, coming to her brother's rescue. “It was a joke. Jerry told you he's going to find a job.”
Constantine held up a hand. “Okay, I hope he does.”
Everyone returned to eating and an uncomfortable silence crowded the room. Jerry told himself that he would convince Michael that he was going to stay on the right road; it will just take a little time. It had taken time and bad decisions to lose respect, and it would take work and a few good decisions to get it back. He commended himself on having the right attitude as he finished his chicken stir fry.
Constantine wondered how long it would be until drugs surfaced and belongings started disappearing. One time and he's out of here, Constantine thought to himself, whether Vickie likes it or not.
Chapter 10
May 4, 2016
Lawyers get home-field advantage when they set a deposition. Sometimes they seek to create an atmosphere of physical intimidation for the other party—anything to gain a psychological advantage.
I follow a red-haired woman in her mid-twenties down a short hall to an opulent conference room that features travertine, marble corner tables, and a huge mahogany conference table in the shape of a U that seats twenty-four with large leather-backed chairs. Overhead are three enormous chandeliers that have to be a nightmare for some poor soul to dust. This forty-fourth-floor cavern for the wealthiest of clients is, I guess, where the Michael Constantines of the world expect their lawyers to hang out. I thank the young escort and move to the top of one side of the “U,” where a court reporter is setting up. Next to her, the videographer is getting his camera set up. They and their equipment are dwarfed by this cavernous room. I cup my hands around my mouth and warble “hello down there” to emphasize the absurdity of this. The reporter and the videographer laugh as I walk over to them.
“Good morning. I'm Scott Winslow,” I say to both of them.
“Hi, Mr. Winslow. I'm Lynn Hernandez,” the court reporter replies.
“Mr. Winslow,” the videographer said, extending a hand. “Jim Roybal. Good to meet you.”
“Please,” I say, “call me Scott.” I look around the room and then add, “I guess the Convention Center was unavailable this morning.” They both laugh.
“Yeah,” Frank says, “the room is a little large for this group.”
I sit down beside the empty seat one away from Lynn, leaving a vacant seat for the witness between us.
The redhead reappears with Kevin Walters in her wake and says, “Here you are,” waving to the three of us in the distant corner of this cavernous room.
“Hi, Kevin,” I say, standing to shake his hand. He shakes my hand and then glances around him and shrugs.
“Yeah,” I say, rolling my eyes, “very modest and unassuming.” Come take the seat of honor next to the court reporter. Hook the microphone to your lapel.” I do likewise. The lawyers and the witness wear microphones for the audio portion of the deposition video that is being prepared. At trial, a jury can see the witness on tape while hearing questions and answers to the extent allowed into evidence.
Kevin sits, and we wait fifteen minutes past our scheduled start time. One more of the games Harris likes to play. Harris then walks in and sits, placing his laptop in front of him. He hooks his microphone to his shirt. When all is set, he says, “Good morning,” and then adds, “Are we ready?”
“Yes, we're ready.” I look around the gigantic room. “Unless you are expecting others?”
“No,” Harris says. He looks at the videographer and says, “Let's get started.”
The videographer announces the deposition of Kevin Walters, the date, and the location, and Harris and I introduce ourselves for the record. Then he asks the court reporter to administer the oath to the witness, which she does.
Never to disappoint, Bob Harris is every bit the horse's ass I expect. Kevin is poised, calm, and professional, just as he had been during our many hours of preparation, when I played the role of the horse's ass.
Harris leans over the long, polished table and the camera remains focused on Kevin, videotaping his testimony throughout. The first four hours are spent going through Kevin's work history, from his first part-time job in high school and then through his entire history with Consolidated Energy, every position ever held, to whom he reported, how his performance was reviewed. He is asked ad nauseam about all prior jobs held, what he did at each, who he reported to, who reported to him, who he had lunch with, and why he moved from each position. Then Harris takes him through his education at tedious length. He almost goes back as far as Montessori before progressing to high school, college, and grad degrees.
After lunch, he inquires at length about Consolidated, its structure, subsidiaries, the mines it owns, and management personnel who operated them, as well as Kevin's role in each. Then it gets more entertaining.
Harris sits back and tosses out, “Mr. Walters, isn't it accurate that on a number of occasions, Mr. Constantine, had expressed dissatisfaction with your performance?”
“Objection,” I say. “Vague and ambiguous as to what's a number of occasions. And expressed dissatisfaction to whom? If we are talking about anyone other than the witness, it lacks foundation and calls for speculation.” To Kevin, I say, “You can answer if you understand.”
“No,” Walters says.
“So you're telling us that Mr. Constantine never told you that he thought there were problems with your performance?”
“That's right,” Walters says.
“Why do you think you were fired?”
“I know why I was fired,” Walters says.
“How do you know?” Harris asks. “Did someone tell you?”
Walters leaned forward in his chair and looked Harris in the eyes. “Indirectly, yes.”
“What does indirectly mean?”
“Michael Constantine told me that I was fired because I betrayed him.”
“And how did you betray him?”
I raised a hand to stop Kevin from answering until I get my objection on the record. “I object. The question assumes facts not in evidence and is argumentative. He did not say that he betrayed Constantine, he said that Constantine said that.”
“All right,” Harris said, annoyance in his tone. “Did he say how you had betrayed him?”
Kevin nodded firmly. “From the context of our conversation at the time, yes.”
“What was said?”
“He said I had no business going out and talking to Carl Miller, the Easton County inspector. That conditions of our operations were to be discussed in-house only. He asked me if that was clear.”
“And you said?”
“I told him that the company failed to correct violations that endangered its employees, and that I was not okay with that.”
“What did he say?”
“He said I didn't have to worry about it anymore. That my services were no longer required.”
“Did you respond?”
“Not at first. I was stunned that it was over just like that after so many years of being a part of management. When I recovered, I said, 'I didn't expect this from you, Michael. Is it all about profit? Is there no room to do things right?'
“He was angry. He stared at me and said, 'This meeting is over.' So I left.”
“Anyone else there for any part of this meeting?”
“Yeah. Larry Hanson, VP of administration, and a senior personnel guy whose name I can't remember.”
“Is he someone you knew before the meeting? Can you describe him?”
My turn to be heard. “Object as compound. Answer one of those questions, Kevin, but don't tell him which one.”
&nbs
p; “You think you're funny, counsel,” Harris said in a raised voice. It was not a question.
“Well, yes.” I say. “But I also think your question was bad.”
“Yes,” Kevin says, and then adds, “to both questions. I had seen him around, although he had only been with the company for about a year. He was about forty, clean shaven, wore wire rimmed glasses, and was balding on top. He was a tall, slender fellow.”
“He say anything during the meeting?” Harris asks.
“Not that I recall.”
“Were Mr. Constantine and Mr. Hanson still there when you left the room?”
“Yes.”
“So they could vouch for your story about what happened in this meeting?”
“They could if they were inclined to tell the truth,” Kevin says in an even tone. I love this answer and have to suppress a grin.
“So they'd be lying if they said it happened differently?”
“I object,” I say. “You're asking him someone else's state of mind. It calls for speculation. You can answer to the best of your ability,” I told Kevin.
“Lying or misremembering,” he says, evenly.
Harris pauses and grows a smug look. “Were you a named defendant in a sexual harassment lawsuit against the company?” Harris asks.
Kevin shakes his head in a manner that suggests he was annoyed. “Yes,” he responded.
I felt like I had not been told about an important piece of information. “Wait a minute,” I say. “Let's take a break.”
“In a few minutes,” Harris says, “after I finish this line of questioning.”
“No,” I respond as evenly as I can, “right now.”
“Counsel, you're interfering with my deposition,” Harris complains.
“No, I'm just taking a break. Come with me, Kevin.” We step outside the conference room and walk out to the lobby. “Something you should let me in on? What's with the sex harassment lawsuit?” I ask, after making sure that we were outside the range of hearing of those in the area.
“It shows what they will do to get to me, that's for sure. A director who reported to me was accused of coming on to his secretary. Her name was Jane Evans. There was no allegation against me except that it involved one of my subordinates.”
“What happened to the case?”
“It settled.”
“Were you accused of doing anything inappropriate by anyone in the company?”
“No, never.”
“Did you testify?”
“No.”
I nodded. “How long ago was this?”
“Maybe six or seven years,” he says.
I nod. “If I'd known the story, I never would have forced a break.”
“I'd have told you about it,” Kevin says, “but I would never have imagined they would attempt to use something like that against me. It had nothing to do with me.”
“Tip of the iceberg, Kevin. They will use anything and everything that will stop you, and we have to be ready for all of it.”
When we step back inside, Harris is grinning again. I pretend not to notice. So much damned theater in the process.
“Are we ready to go back on the record?” Harris asks.
“Yes,” I say evenly.
“Any part of your testimony you would like to change after meeting with counsel?” I suppress a grin.
“No,” Kevin says, “we're fine.”
“So then,” Harris asks, did you violate policy in connection with the sexual harassment matter we were discussing?
“Not that I'm aware of,” Kevin says.
“Did you report the matter to your supervisor?”
“What matter are you speaking of?”
“The sexual harassment claim of Ms. Evans that we have been discussing.”
“Sure,” Kevin says.
“When?”
“You want the date?”
“Yes, the date,” Harris says.
“I don't know. It has been a number of years.”
Harris leans forward in his chair, eyes fixed on Kevin. “Weren't you criticized by Mr. Constantine in connection with your handling of the matter?”
“I was not,” Kevin says.
“Did you have any disagreements concerning how it should be handled?”
Kevin paused. I had no idea what was coming next. “Yes,” Kevin says, evenly.
“Why don't you tell me about that?”
“Do you know what this incident involved, Mr. Harris?”
“Yes, and so do you.”
“Objection, counsel. Argumentative and hopelessly ambiguous. Whether what you think you know is what Mr. Walters knows is unknown because you haven't asked. As such, the record is not at all clear that the two of you are on the same page.”
“It's my record, counsel,” Harris growls, sounding annoyed.
“It is,” I respond. “And if you like ambiguity, it will be perfect for you.”
Harris gives me daggers. Kevin starts to speak, and I say, “Wait for a question.”
“There is a question,” Harris retorts.
“All right, then, wait for a question that makes sense.”
“Counsel, you are pushing the limits,” Harris snarls.
“Thank you. Is there a question you would like to ask?”
Harris gathers himself and says, “What was the disagreement between you and Mr. Constantine concerning how the matter should be handled?”
Kevin pauses to see if there would be any more argument from anyone and proceeds when the silence persisted for longer than five seconds. “There were allegations that a subordinate of mine had been persistent in asking Ms. Evans to have a relationship. She resisted for a while, and then she complained. When I told Mike Constantine of the events and the discipline I laid on my subordinate, he had another view.”
“Which was?” Harris asked impatiently.
“That they were both a pain in the ass, and I should dump both of them.”
“And what did you say?” Harris asks.
“I said we shouldn't, and we can't fire someone for complaining about improper conduct of a coworker. He just told me to handle it one way or another.”
“There was a lawsuit thereafter, right?”
“Yes, there was.”
“Did it cost the company money?”
My turn to chime in. “I object. Lacks foundation, calls for speculation, vague and ambiguous, and may violate a confidentiality agreement, but you represent the company, and if you want that on the record, I'll let him respond.”
Harris put on a thoughtful expression, but didn't speak further.
Kevin responds, “Most lawsuits do.”
“It was made clear to you that Mr. Constantine held you responsible for this lawsuit, wasn't it?”
I watch Kevin's brow furrow. He pauses and then simply says, “No.”
Harris sits back in his chair. “Mr. Walters, do you contend that you complained to anyone about unsafe conditions at any of the mines?” Harris asks.
“Yes.”
“Which one?” Harris asks.
I chimed in, “Objection. Lacks foundation and assumes facts not in evidence.”
“Several over the years,” Kevin says. “Most recently, however, it was Ruston.”
“And what was the nature of your complaint about Ruston?”
“Assuming there was only one,” I say.
“And there wasn't only one,” Kevin responds. “They were numerous.”
“What complaints did you make?” Harris asks.
“They all related to the fact that the mine was unsafe, and workers were at risk. My complaints were inadequate tunnel maintenance, failing substructures, inadequate safety equipment, and failure to make corrections to bring us into compliance with law.”
“How were you out of compliance with law?”
“I wasn't,” Walters says. “The company was.”
“Okay, fine,” Harris says, frustration apparent. “How was the company in violation?”
; “Much of it is documented,” Kevin says. “The company was cited for twenty-two violations for unsafe conditions. Additionally, I documented shortcomings when they were made known to me.”
“Do you have those documents?”
“No, unfortunately, the company has them, though they haven't been produced as requested by my counsel.”
“Move to strike that last statement as nonresponsive,” Harris says.
Kevin gives me a look, and I say. “He is moving to strike your statement from the record because he didn't like it.”
Harris glares at me. “I moved to strike it because it was not responsive to my question, counsel.”
“Okay, fine. He moved to strike your statement because he didn't believe it was responsive to his question and because he didn't like it.”
Harris gives me another sharp look, and then continues, “To whom did you make your complaints, Mr. Walters?”
“To a number of managers inside the company, including Michael Constantine, and when it was clear it was to be swept under the rug by Michael, I went to Carl Miller, the county inspector.”
“And where is Mr. Miller now?” Harris asks.
“Right now? How would he know that?” I interject.
“Counsel, I don't appreciate your obstreperous behavior,” Harris says.
“I think he means these days rather than today, I say to Kevin.”
“I don't know.”
“Does he still work for the county?”
“Apparently not,” Kevin responds.
“And you have no way of contacting him?”
“Correct,” Kevin says.
“Well, that's pretty convenient, isn't it?” Harris says.
“Don't respond, Kevin,” I say. “That is argumentative, and it's not even a question.”
“All right,” Harris says, “here's a question. The mine you complained about, Ruston, is still operating just fine, right?”
“Object. Vague and ambiguous and argumentative, but you may answer.”
“No, it's not just fine by any reasonable definition.”
“What specific conditions did you complain about?”
“I complained that there were documented violations from the MSHA, the governing federal agency with jurisdiction of mining operations, that had not been corrected, some of which were S&S violations and some of which had also been the subject of repeat violation. I complained that records weren't being kept as MSHA required—problems were being reported on project documents but not the records MSHA reviews.” Kevin draws a breath.
[2017] The Whistleblower Onslaught Page 8